Donald Trump, Michael Hayden, Unlawful Orders, and the Establishment

Michael Hayden is a retired four-star general who ran the NSA and then the CIA under George W. Bush. Bill Maher asked him about Donald Trump’s plans to, for example, kill the families of terrorists, and Hayden replied that the armed forces would refuse to obey unlawful orders.

This is (1) unsurprising (2) surprising and (3) significant.

Let me take those in order.

It’s unsurprising because, at least since the Nuremberg Trials, it has been clear that an order contrary to the laws of war is not a lawful order and must not be obeyed. That is to say, what those trials established was precisely that the “Nuremberg Defense” is no defense at all.

So what Hayden said is utterly uncontroversial, and I would expect any competent person to give the same answer. How many would actually refuse, when push came to shove, at the risk of being relieved of duty, is a different question, though some surely would. But it’s not a choice anyone wants to face.

And it’s clearly a choice that Hayden thinks Trump might force on them: not just because he’s called for the commission of war crimes (he’s not alone on that) but because his entire demeanor suggests that – unlike, say, Marco Rubio – he wouldn’t automatically back down when the brass told him that what he wanted couldn’t lawfully be done.

It’s surprising because even retired generals tend to be a little bit delicate about engaging in politics, and because (given his service under GWB) Hayden’s partisan loyalties, insofar as he has them, are more likely to be Republican than Democratic. When someone in that position calmly announces on national TV that the stated plans of the almost-presumptive GOP Presidential nominee are unlawful and would be disobeyed, that’s news.

Hayden could easily have ducked the question, dismissed it as merely hypothetical, asserted that surely Trump couldn’t have meant what he said, or simply replied that he didn’t want to be seen as taking a position in the Presidential campaign. He did none of those things.  He flatly said that Trump had pledged to give orders that no honorable servicemember could carry out, thus clearly implying that Trump is unfit to hold office. And his saying so means that he’s pretty sure the people whose good opinion matters to him, including his former colleagues still in active service, agree.

And that brings us to significance.  There’s been lots of loose talk about how, if Trump becomes the nominee, even the #NeverTrump Republicans will “come home” because partisanship is now so strong and they hate Hillary so much. Of course that’s partially true; no doubt some of the #NeverTrump stuff is posturing in the nomination contest.

But it’s possible to be too cynical, even about American politics in the Twenty-teens.  Many Republican voters, and a big chunk of what might be called the Permanent Republican Party – the Republican political class and its associated corps of donors, influentials and potential nominees to senior positions – are sincerely patriotic and devoted to keeping the country strong militarily.

When those people learn, from personal contacts or from reading about what Hayden said (and what others like him will surely say), that the senior serving generals and admirals regard Trump as unfit for office and stand ready to defy his unlawful orders, that will make them profoundly unwilling to see Trump become President. And that includes the executives and big shareholders of the military contractors, who constitute an important element of the donor base and whose employees are likely to get the word that Trump would be bad for business.

Now, the people I’m describing have a different problem from, say, Reince Priebus or Mitch McConnell or Paul Ryan. Priebus has to support the GOP candidate or leave his job. McConnell has to decide what course of action gives him the best shot of keeping his majority in the Senate. Ryan probably can’t get away with not backing Trump if he wants to hold the Speakership. All three need to think about the effects of their stances toward Trump on their own futures as well as whether they want him to actually become President.

To the generals and admirals, though, what really matters is whether there’s a buffoon in the White House who might go around giving unlawful orders, thus setting up a constitutional confrontation that can only damage readiness in the short run and political-military relationships in the long run (since at least some Republicans on Capitol Hill would back a Republican President against disobedient generals and admirals). And what matters to them matters to the national-defense part of the Permanent Republican Party. Those folks are going to deeply and sincerely want Donald Trump to lose, no matter how little some of them want Hillary Clinton to win. That might mean merely sitting on their hands; it might mean backing some sort of Mugwump ticket; it might mean actually crossing over.

How many fewer votes for Trump or more votes for Clinton that would translate into (as compared to a Rubio candidacy) I can’t estimate. But I’m pretty sure it’s a big enough number – combined with similar revolts from (e.g.) the foreign-policy types and the constitutional lawyers – to make a Clinton victory a near-certainty, even if Trump could otherwise manage to finesse the Republicans’ basic demographic problem. And it might be enough, especially given the positive feedbacks in campaigns – everybody wants to be with the winner, no one wants to be with a loser – to make possible, despite the hardening of party lines, a 1964-1972-1984-level landslide.

Despite the best efforts of Newt Gingrich and Roger Ailes, the United States of America is not – at least is not yet, and probably never will be – the Weimar Republic. Compared to the Cold War period, the Establishment is fractured and weakened. But it’s still there, and most of it is still loyal to the project of republican government.

So Donald Trump is not going to be our next President. However, “to make assurance doubly sure,” Democrats and other patriots would be well advised to work their butts off from now to November, all the same.

Update

Comments, below and elsewhere, have focused on how much actual resistance the military would offer to unlawful orders issued by President Trump. Some of that discussion tends to elide the distinction between activity that is arguably problematic (e.g., drone strikes) and activity that is grossly illegal (murdering family members).  But in any case, the central point of the post is not what might happen later, but what is likely to happen between now and November.

To summarize:

1. The brass will stretch a point to avoid a constitutional confrontation with a President, especially in wartime.

2. But they’d rather not.

3. Trump’s election would create a high probability of having to make that choice.

4. Hayden’s views likely reflect those of his friends still on active duty.

5. Therefore I expect the Republican side of the national security Establishment to actively work to keep Trump out of the White House.

6. That makes Trump’s election very unlikely.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.